USCA1 Opinion

March 2, 1993
[NOT FOR PUBLICATION]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 92-2123
UNITED STATES,
Appellee,
v.
BARRY L. WEINSTEIN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

Joseph J. Balliro with whom Balliro, Mondano & Balliro was

__________________
____________________________
brief for appellant.
Despena Fillios Billings, Assistant United States Attorney, w
_________________________
whom A. John Pappalardo, United States Attorney, was on brief
___________________
appellee.
____________________
____________________

STAHL, Circuit Judge.

_____________
Barry L.

Weinstein

In

challenges his

this appeal,
conviction

for

defendant
knowing

receipt of stolen property, and for conspiracy to commit that

crime.

Specifically,

unfairly

prejudiced

government

in

court's

charge

comments

to be

defendant argues
by

certain

its closing
to

the

harmless

proper, we affirm.

comments

argument,

jury.

that his

and

Finding

error, and

made
by the

trial was
by

the

district

the

government's

the jury

instructions

I.
I.
__
FACTUAL BACKGROUND
FACTUAL BACKGROUND
__________________
The government's evidence in

this case shows

in February of 1991, Michael Flatt, accompanied by a

broke into

a safe in

a private

home in Dallas,

stole approximately 26 items of jewelry.

that

friend,

Texas, and

The purloined items

had a total resale value between $85,000 and $134,000.

packaged
home in

Flatt

the pieces and sent them via Federal Express to his

Boston, Massachusetts.

Flatt sought to have

Upon his return

to Boston,

some of the jewelry appraised.

He took

three examples of the loot to "Roy K. Eyges, Inc.," a jewelry

store

in Boston,

where he

was introduced

to defendant,

jewelry appraiser employed at the store.

Flatt told

defendant

jewelry

and that

privacy

of defendant's

that he

he was interested

had

inherited

the

in selling it.

In the

office, defendant indicated

that he

-22

was interested in helping Flatt sell the jewelry, but that he

wanted to do
could

so independently

obtain

of his employer,

commission on

the

sale.

so that

At this

he

first

meeting, defendant suggested that he and Flatt transact their

business in cash.
The

following weekend,

and was given several

pieces of the

days later, by arrangement,

garage,

defendant met

where defendant

between $7,000 and $9,000

jewelry to sell.

the two met in a

gave Flatt

with Flatt,

a paper

Some

public parking
bag containing

in cash obtained from the

sale of

unspecified pieces of the stolen jewelry.

At this meeting, defendant
of the jewelry.

asked about the

Flatt advised defendant that he

the jewelry from Texas.

had stolen

Defendant said that he had suspected

that the jewelry was stolen.

checked to see if

source

He also told Flatt that he had

the jewelry had been reported

stolen, and

that it had not been so reported.

Several days later, again by arrangement, defendant
and

Flatt met in defendant's

Boston.

Defendant

informed

partner,

co-defendant

Eric

raise
from

car on a

designated street in

Flatt that
Bleiler,1

defendant

were

and

attempting

a
to

money in order to purchase some of the pieces outright

Flatt.

At

that

meeting,

Flatt

gave

defendant

____________________
1. At trial,
him.

Bleiler was

acquitted of all

charges against

-33

approximately

ten

additional pieces

of

stolen

jewelry to

sell.
In

the course

defendant told
for

Flatt from

of subsequent

phone conversations,

Flatt that his partner Bleiler

the sale

of some

had more cash

of the jewelry,

and that

defendant could pick up the cash at Bleiler's shop in Newton,

Massachusetts, outside
shop

and

was given

of Boston.
a

paper

Flatt went

bag containing

to Bleiler's
approximately

$9,000 in cash.
Shortly after
left Boston
Flatt by

to live

phone that

his visit to

Bleiler's shop,

in San Francisco.

Defendant

he was

interested in

Flatt

notified

doing additional

business with Flatt, and that he had $15,000 more in cash for
Flatt

from

jewelry.

the sale

of

pieces of

the

stolen

Flatt requested that defendant send him the cash in

San Francisco

via Federal

last proceeds from the sale

was arrested in San
burglary.2

additional

Express.

Before

receiving these

of the purloined jewelry,

Francisco in connection with the

After his arrest, Flatt

Flatt
Dallas

signed a written consent

form allowing the San Francisco Police Department to open his

mail.

On

intercepted

April

24,

and opened

1991,
a

the

San

Francisco

package addressed

Police

to Flatt

from

defendant which contained $15,100 in cash.

____________________
2. In separate proceedings, Flatt was convicted on state
charges of burglary and on federal charges of interstate
transportation of stolen property.
-44

Shortly
charged
in

thereafter,

of

18

U.S.C.

conspiracy to commit that

on

was

arrested

and

with one count of knowing receipt of stolen property

violation

371.4

defendant

After

both

2315,3

one

crime in violation of 18

a five-day jury trial,

counts.

and

From these

II.
II.
___
DISCUSSION
DISCUSSION
__________

of

U.S.C.

defendant was convicted

convictions,

appeals.

count

defendant

now

On
government's
prejudicial.
instructions

appeal, defendant

argues

comments during closing

Defendant also
to the jury.

that certain

of the

argument were unfairly

challenges one of

the court's

We address each argument in turn.

____________________
3.

18 U.S.C.

2315 states in relevant part:

Whoever receives,
possesses, conceals, stores,
barters, sells, or disposes of any goods, wares, or
merchandise, securities, or money of the value of
$5,000 or more . . . which have crossed a State or
United
States
boundary
after being
stolen,
unlawfully converted, or taken, knowing the same to
have been stolen, unlawfully converted, or taken .
. . [s]hall be fined not more than $10,000 or
imprisoned not more than ten years, or both.
4.

18 U.S.C.

371 states in relevant part:

If two or more persons conspire . . . to commit any

offense against the United States . . . and one or
more of such persons do any act to effect the
object of the conspiracy, each shall be fined not
more than $10,000 or imprisoned not more than five
years, or both.
-55

A.

Government's Comments During Closing Argument

A. Government's Comments During Closing Argument

_________________________________________________
The

following

colloquy

took

place

during

the

government's closing argument:

Government:
[Defendants] are not, as
[defense counsel] argued to you in his
opening, sitting the[re] clothed in a
mant[le] of innocence and I am asking you
-The Court:

Oh, yes, they are.

Defendant's counsel:

Objection.

Co-defendant's counsel:

Objection.

The Court: They are indeed clothed in a

mant[le] of innocence. They stand before
you now -- sit before you now absolutely
and totally innocent.
They
remain
innocent until the government proves them
guilty beyond a reasonable doubt.
Defendant

argues that

the

government's statement

effect of denying him the presumption

the

comment was

trial.

had

the

of innocence, and that

sufficiently prejudicial

to warrant

a new

We disagree.
The prejudicial statements of a prosecutor at trial

are subject to a
Hasting,
_______

461

harmless error analysis.

U.S. 499,

Brown, 938 F.2d 1482,

_____
Ct.
"for

611 (1991).
small

likelihood
Hasting,
_______

(1983);

United States
_____________

1489 (1st Cir.), cert. denied,

____ ______

v.

112 S.

Convictions will therefore not be set aside

errors
of

507-509

United States v.
______________

or defects

having changed

that
the

have
result

little,

if any,

of the

trial.'"

461 U.S. at 508 (quoting Chapman v. California, 386

_______
__________

U.S. 18, 22 (1967)).

-66

In
rises

above the level

severity

of the

accidental,
and

determining

Brown,
_____

misconduct,

of

prosecutorial

of harmless error,

the likely

the strength

whether

whether it

effect of the
the

938 F.2d at 1489

evidence

misconduct

"`we consider the

was deliberate

or

curative instruction,
against

appellant[].'"

(quoting United States

_____________

v. Cox, 752
___

F.2d 741, 745 (1st Cir. 1985)).

Having carefully considered all of

the factors set

forth in Brown, it is
_____

our opinion that the likely effect

the

strong,

district court's

curative

instruction, when

charge,5 was that the jury

presumption
improvident

of

contemporaneous
court's final

remained properly apprised of the

despite

Accordingly,

prosecutor's comment, although

See, e.g., United States
___ ____ _____________

and

combined with the

innocence,

statement.

correct

of

the
we

government's
rule

that

the

improper, was harmless error.

v. Lilly, No. 91-2192, slip

_____

op. at

____________________
5.

Along with its sua sponte correction, which literally cut

___ ______
off the government in mid-sentence, the district court also
gave the following instruction in its final charge to the
jury:
Now, we have talked a lot about the
presumption of innocence.
It is a rule
of law in this country, indeed, it is a
constitutional rule, that a defendant is
presumed to be innocent. And that means,
very
simply
that the
defendant is
innocent.
He is innocent until the
government proves him
guilty.
And
because he is innocent, he does not have
to prove his innocence.
He has no
obligation to offer any evidence, he has
no obligation to offer any explanation,
hehas no obligation to take the stand.
-77

17

(1st

Cir. 1992)

(indicating

that

generally "a

strong

message from the bench, delivered promptly, is a satisfactory

antidote to the potentially poisonous effects of an ambiguous
comment

or

a remark

that sails

United States v. Maccini,

_____________
_______
(holding that district
were

sufficient

to

too

close to

721 F.2d 840, 847 (1st

the wind");
Cir. 1983)

court's "strong curative instructions

correct"

the

effect

of

government's

improper statements).6
____________________
6. Defendant also challenges two implications allegedly made
by the government during its rebuttal to defendant's closing
argument.
According to defendant, the government unfairly
implied that the testimony of law enforcement officials is
generally more credible than the testimony of laypersons, and
that defendant's actions had violated a Boston ordinance
which requires that large cash transactions be reported to
the Boston Police.
Even
if the
government's comments
carried these
implications, defendant has failed to argue, let alone
demonstrate, that either comment "`changed the result of the
trial.'" Hasting, 461 U.S. at 508 (quoting Chapman, 386 U.S.
_______
_______
at 22). As defendant himself concedes, the government's case
against
him consisted primarily
of Flatt's testimony.
Neither police credibility nor the Boston ordinance were
significant issues in the case against defendant.
Moreover,
the
district
court directly
addressed
defendant's concerns regarding the statements.
With regard
to the testimony of law enforcement officers, the district
court told the jury:
"You should judge [law enforcement
officials] in exactly the same way as you judge everybody
else. Just because they work for a law enforcement agency,
doesn't make them more believable nor less believable than
anybody else."
With regard to the Boston ordinance, the
district court instructed the jury that "neither [defendant]
nor [co-defendant] Bleiler do business in Boston.
So, there
is no evidence one way or the other that they have any
obligation to
file a police report."
We find these
instructions more than adequate to dispel any possible
prejudice from the government's statements.
See, e.g.,
___
____
Lilly, slip op. at
17 (strong corrective instructions
_____
generally
sufficient
to
cure
improper
prosecutorial
comments).
To the extent, therefore, that these statements
-88

B. Jury Instructions
B. Jury Instructions
_____________________
Defendant
instruction

also

regarding

challenges

the

process

the
of

following

evaluating

jury
witness

credibility:
Now, th[e] process [of evaluating witness
credibility]
is,
as used
here, no
different from what you do all the time,
every day in your lives.
When somebody
tells you a story, you make a judgment
whether you believe what the person told
you.
You
probably
do it
almost
instinctively. And I ask you to make the
same judgment, precisely the same kind of
judgment, as you review the testimony of
each of the witnesses.
Relying

on United States v. Araujo, 539 F.2d 287, 290-91 (2d

_____________
______

Cir.), cert.
____

denied, 429 U.S. 983

______

(1976)), defendant argues

that this

instruction was

prejudicial because

it permitted

jurors to

rely improperly

on their "instincts"

rather than

their common sense in assessing witness credibility.

We find

defendant's argument bordering on the frivolous.

The

district

particular

testimony or

jury

human

that

beings

____________________

court

in

Araujo,
______

evidence at
have

trial,

tendency

referring

to

instructed the
or

"natural

were improper, they too were harmless error.

Similarly, we are unpersuaded by defendant's argument
that the two comments had the cumulative effect of rendering
the trial unfair. Given that the comments were unrelated to
each other, and that each comment standing alone was at most
harmless error, there simply is no basis for concluding that
the comments taken together influenced the outcome
of
defendant's trial in any way.
-99

instinct" to lie
Second Circuit
would be
his[/her]
charge."

when confronted

preferable if the trial

own

case,
correct

accusation.

disapproved of the comment,

personal

views

The

stating that "it

judge avoided interjecting

of

human

nature

into

the

Id. at 291.
___
Plainly, the

Araujo.
______

with an

In using

instant case

the term

the district court, in

jury instruction

is very

different from

"instinctively" in the
the context of

on assessing

instant

a complete and

witness credibility,

merely emphasized to jury members that their every-day manner

of

assessing credibility

deliberations.

Far

could

be employed

from encouraging

in their

jury members

jury

to cast

aside their common sense, the instruction tended to encourage

its use.

As such, the instruction does not

provide a basis

for granting defendant a new trial.

III.
III.
____
CONCLUSION
CONCLUSION
__________
For

the

foregoing reasons,

district court is affirmed.

Affirmed.
Affirmed.
________

-1010

the

judgment of

the